Comparative Criminal Law Working Group 2

Comparative Criminal Law, Working group 2 (2016/2017). 

Comparative Criminal Law Working Group 2

Police Interrogation

Question 1:

Analyse the decisions in Miranda v Arizona and Salduz v Turkey answering the following questions, referring to the relevant pages or paragraphs:

Miranda v Arizona, US SC

1. Which are the most important facts in the Miranda case?

Answer:

The Mexican defendant Ernesto Miranda was questioned while in custody and he was cut off from the outside world. There was given no warning of his rights at the outset of the interrogation process (page 19). The police took him to a special interrogation room where they secured a confession (par. 25). The defendant was a seriously disturbed individual with pronounced sexual fantasies.

Two hours later the police emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘’with full knowledge of my legal rights, understanding any statement I make may be used against me.’’ At trial before the jury, the written confession was admitted to the evidence and Miranda was found guilty of kidnapping and rape.

This case is about police interrogation in the United States. In this case the statements of the defence were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. The Court deals with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (p. 4). These safeguards mean that the prosecutor is devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it. The person must be warned that  he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, only voluntarily, knowingly and intelligently.

2. What is the constitutional basis on which the US Supreme Court grounds its ruling in Miranda? How, by which criteria or considerations, does the US Supreme Court determine whether there has been a violation of the privilege against self-incrimination?

Answer:

The constitutional basis on which the US Supreme Court grounds its ruling in Miranda is The Fifth Amendment to the United States Constitution, which protects witnesses from being forced to incriminate themselves (p. 2, 9, 11).

The considerations are as followed:

1. Reasons: to prevent intimidation and secure the free choice of the defendant. The Government should come up with evidence. This must apply in the pretrial, because there is a compulsion to speak.
2. Focus: page 10: The test to determine if the defendant made a statement voluntary or not: The focus is, they don’t look at the content of the statement but at the making of the statement (if you look pressured or scared when you make the statement, this is not voluntarily made).
3. Content: the Miranda rights: The right to remain silent, everything you say can and will be used against you in the court of law, you have the right to an attorney, if you can’t afford an attorney you will get one. (page 12 & 13).
4. Consequences of invoking the right: You have the responsibility to invoke your rights. The rights were mentioned to you. What happens? The interrogation is eliminated till the lawyer is present. The interrogation must cease. You have to keep invoking the right every time the interrogation starts again.
5. Balance: Find the truth. The Government should stick to the rules. There is a balance, the limits we placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement.

3. How is the privilege against self-incrimination related to the right to counsel under the Fifth Amendment?

Answer:

If the right to counsel under the Fifth amendment is not guaranteed, the right to self-incrimination is violated. The right to Counsel is very important and must be guaranteed, unless the defendant waives his counsel. The right to counsel is a principle of justice within the Fifth Amendment.

Interrogation techniques can be used to overcome. The presence of the lawyers are needed to fight back (page 12). Circumstances can change quickly and the lawyer can help you to fight back.

If the lawyer is present, the prosecution doesn’t need much proof that the statement was accurate. The lawyer can prevent coercion or pressure from the interrogation if he is present. The ractice of coercion is reduced (page 12).

4. What are the legal consequences following a violation of the privilege against self-incrimination according to the Supreme Court?

Answer:

The consequences of the violation of the privilege against self-incrimination are that the decisions of the Supreme Court of Arizona, the New York Court of Appeals and of the Court of Appeals for the Ninth Circuit are reversed.

Statements that are not voluntary given are not admissible for the evidence (page 15).

Salduz v Turkey, ECtHR

5. Which are the most important facts in the Salduz case?

Answer:

In 2001 Salduz was taken into custody by police officers on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK. After the police interrogation, the medical report stated that there was no trace of ill-treatment on his body. However, Salduz claimed that he had been beaten and insulted while in police custody.

He claimed that his right to a fair trial (art. 6 ECHR) had been violated, because his confession was not made voluntarily. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody (page 43 and 44).

6. What ECHR provision is the basis for the  Salduz judgment? By which criteria and on the basis of which considerations does the ECtHR determine whether there has been a violation of the right to counsel?

Answer:

The ECHR provision that the Salduz judgment is based on is article 6 ECHR (3C): the right to a fair trial. The case is about access to a lawyer during police custody (the right to counsel) (par. 45, page 49).

CONSIDERATIONS:

• Focus: The right to an attorney from the start of the pre-trial.

According to the Court, the right to a fair trial also applies to pre-trial proceedings (par. 50). The right to a fair trial should be sufficiently ‘’practical and effective’’. Article 6 requires that access to a lawyer should be provided as from the first interrogation of a suspect by the police. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for conviction. (par 55).

• Applicable: at pre-trial and the trial. (par. 50). It is not specified, but it must be practical and effective.
• Right to a fair trial should be ensured, practically and effective (par. 51 and 55)
• Why by the presence of a lawyer:
  
  • Lawyer can advise you about your attitude: maybe you should remain silent, maybe not. (par. 52)
  • Human rights standard:
    • Prevent coercion
    • To prevent miscarriage of justice
    • Equality of arms must be ensured (par. 53)
  • The defendant is in a particular vulnerable position, therefore he needs protection

Rule: Access form a lawyer from the first interrogation, unless there are valid reasons for restrictions, the right of access to a lawyer may be restricted.

So:

• No access to a lawyer?
• Are the rights of the accused guaranteed? Was he able to challenge the evidence?
• Did the defence make incriminating statements which were used for conviction?

7. How is privilege against self-incrimination related to the right to counsel under the ECHR regime?

Answer:

The right to counsel must be guaranteed. If not, this will only lead to a violation of article 6 ECHR if the defendant incriminated himself and the confession was used as evidence in court. If you don’t have access to a lawyer, the right to not incriminate yourself should be respected by other safeguards.

The right to a fair trial is not guaranteed if you do not have access to a lawyer.

8. What are the legal consequences following a violation of the right to counsel according to the European Court of Human Rights?

Answer:

The most appropriate form of redress for a violation of article 6 ECHR would be to ensure that the applicant, as far as is possible, is put in the position in which he would have been had this provision not been disregarded (par. 72). In this particular case it would be a retrial of the applicant. The Government must also pay damages EUR 2,000 (par 73).

Question 2:

“In the United States, defendants do not have the right to counsel either before or during interrogation, but they do have the right to remain silent and refuse to talk to the police in the absence of counsel.” (Gruber et al, Practical Global Criminal Procedure 2012, p. 153).

1. Explain this referring to the (relevant paragraphs of the) Miranda ruling.

Answer:

Partly incorrect: (page 12, right colom) In the Miranda case the Mexican Ernesto Miranda was taken into custody. He was questioned by two police officers, he was not advised that he had right to have an attorney present. He made a confession, and this confession was admitted to the evidence. Miranda was not apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to incriminate himself respected in any other manner. (p. 19).

• It is not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

2. Explain in what way this is different from the ECHR regime.

Answer:

According to the ECHR article 6 you do have the right to an attorney in the pre-trial. Defendants do have the right to counsel before or during interrogation. They may speak to counsel on the telephone, or in person, before the interrogation starts. The lawyer may be present at the interrogation.

Question 3:

Analyse the decisions in Berghuis, Warden v Thomkins and Plonka v Poland answering the following questions, referring to the relevant pages or paragraphs:

1. How, by which criteria or considerations, does the court determine whether there has been a valid waiver of the privilege against self-incrimination or the right to counsel?

Answer:

Berghuis/Warden v. Thomkins: Page 36: the suspect must do so ambiguously and unequivocally. The police are not required to end the interrogation if the accused makes a statement concerning the right to counsel which is ambiguous or equivocal. They do not have to ask questions to clarify whether the accused wants to invoke his or her Miranda rights.

Waiver of the right to remain silent when he knowingly and voluntarily made a statement to the police. A waiver must be ‘’the product of free and deliberate choice rather than intimidation, coercion, or deception’’ and ‘’made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it’’. (par. B, p. 37).

Implicit waiver: Start talking (conduct indicating waiver) and circumstances (for example someone starts talking without being pressured).

Plonka v Poland:  Waiver of the right to remain silent when he knowingly and voluntarily made a statement to the police. A waiver must be ‘’the product of free and deliberate choice rather than intimidation, coercion, or deception’’ and ‘’made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it’’. (par. 35, p. 62). > Expressly waiver is needed!

2. What was the outcome of this assessment in each of these cases?

Answer:

In the Berghuis case, Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’s right to remain silent before interrogating him. It was a valid way; he didn’t invoke his right and the conduct of him made it waiver.

In the Plonka case, the defendant did not waive her right to be presented by a lawyer expressively, during her questioning. She did not ask for a lawyer, but was not helped by the police to appoint one. The Court considers that in the present case the applicant was undoubtedly directly affected by the lack of access to a lawyer during her questioning by the police. (par. 27, 36, 41).

Par. 37: explicit or implicitly.

Alcohol problem in Plonka, so she was extra vulnerable: She should have been assisted by a lawyer. The State should have assisted her more than would be expected by other citizens (par. 38). This is the reason why the Court ruled that there was not a valid waiver.

Question 4: Comparative conclusions

1. All in all, which are the main differences between the protection of the suspect during police interrogation offered by the US Supreme Court and the protection provided by the European Court of Human Rights?

Answer:

There are not so many differences, but there is one big difference: the ECHR offers the possibility to look into a person's circumstances, as for example in the Plonka case. The US Supreme Court does not have that possibility. 

2. Can the inquisitorial – adversarial divide help us to account for these differences? Why and how/why not?

Answer:

Protection to the accused: > Suspect inquisitorial: In an inquisitorial system we trust the Government more, so the Government has a more active role during the proceedings. In the adversarial system, there is equality of arms which means that the responsibility of the suspect is way bigger than in the inquisitorial system. As a suspect you have to invoke your own rights, while in the inquisitorial system the Government should protect you.  

3. Considering the case law for this week, which seems to provide more adequate protection for suspects under police interrogation?

Answer:

ECHR offers more protection, because they look into the person circumstances. The State should offer protection if the accused is vulnerable (Plonka).